Thursday, December 20, 2018

Can’t deny legal aid to accused in court martial: SC

Changing a 64-year-old Army regulation that denied legal assistance to accused during court-martial proceedings, the Supreme Court ruled that principles of natural justice demanded that whenever an accused Army person seeking legal assistance during the trial, he/she must get it. Sepoy Jaswant Singh faced summary court-martial (SCM) proceedings on two counts and found him guilty of both. The Armed Forces Tribunal dismissed his appeal.

Sepoy Jaswant Singh faced summary court-martial (SCM) proceedings on two counts — assaulting a superior officer and using abusive language against a subedar who picked on him for being improperly dressed for the parade. The SCM found Singh guilty of assaulting the superior officer, ordered his dismissal from service and six months of imprisonment in civil jail. The Armed Forces Tribunal dismissed his appeal. He moved the SC.
Before a bench of Justices D Y Chandrachud and M R Shah, Singh’s counsel Major K Ramesh said his client had requested the commanding officer in July 2009 for permission to hire a civil advocate to assist him during the SCM but it was denied citing Regulation 479 of Army regulations, which provided that a civil advocate was permissible to only those persons who were facing trial for an offence punishable with death sentence.
Writing the judgment for the bench, Justice Chandrachud said on the contrary, Rule 129 of Army Rules, 1954, provided that in an SCM, the accused may have a person to assist him during the trial, whether a legal adviser or any other person. “The expression ‘may’ must be read to mean that the person who is proceeded against has the option on whether or not to engage a legal adviser or any other person. It represents an entitlement to be represented,” he said.
Interpreting ‘may’ in Rule 129 as ‘must’, the bench said, “In view of the specific provision of Rule 129, the commanding officer was evidently in error in declining the assistance of a lawyer on the ground that legal assistance could be admissible only where the offence was punishable with death.”
Referring to the case in hand, the SC said, “Singh had rendered seven years of service. He was pitted against his commanding officer. In the face of Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense. For these reasons, we are of the view that there was a clear violation of the principles of natural justice.” It rejected additional solicitor general Pinky Anand’s argument that no prejudice was caused to Singh because of non-provision of the lawyer during the trial.

The bench said, “The prejudice is too evident. Singh was dismissed from service and sentenced to six months’ imprisonment. Both his livelihood and liberty were taken away. In the circumstances, we allow the appeal and set aside the judgment of the AFT and the decision which has been taken on the basis of the summary court-martial.” This order will permit Singh to rejoin the Army.

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